Share this

As 2009 dawns, there is widespread hope that all branches of government in Washington will make a renewed commitment to the rule of law -- a commitment to resolving legal issues not by power and preference but instead on the basis of a good faith effort to achieve the right legal answer. The cavalier calls for the Senate to reflexively reject Governor Blagojevich’s appointment of Roland Burris to the vacant Illinois Senate seat is a cause for at least mild concern about whether this wish will become a reality.

For many of those advocating that Burris be barred, it seems to be enough that there is some “plausible” argument for refusing to seat him, coupled with an expectation that the courts will defer to whatever the Senate does. Those who argue that the "political question doctrine" might insulate the Senate’s decision from judicial review seem to believe that the finality of the Senate’s decision means that the Senate is free to decide however it wishes to decide.

That cynical view of the law is one that should be interred with the last ashes of 2008. If we are serious about the “rule of law” our first principle should be that the Senate’s power to decide (even if unreviewable) is the always and only the power to decide correctly under the law, not the power to decide however the majority of the Senate prefers to decide. The fact that some grounds for rejecting Burris might be unreviewable by the courts means that the Senate should take more care, not less, to be sure it is acting a constitutionally legitimate manner.

Blagojevich’s appointment is, of course, a shameful act by a disgraced Governor, a blight on the reputation of Burris for accepting, and a political embarrassment for Democrats. The proper question, however, is whether the Senate, acting in good faith, can reach a conscientious conclusion that this appointment, however unwise and unwelcome, is also unlawful under Illinois law or under the United States Constitution. If it isn’t unlawful, he has to be seated.

I do not mean to suggest that the constitutional question is an easy one to answer correctly. It isn’t. Under the Constitution, the Senate is “the judge of elections, returns and qualifications of its own members." The Supreme Court correctly held in Powell v. McCormick that the judiciary could decide what the term “qualifications’ covered, and further correctly held that qualifications encompassed only to age, residency and citizenship. Since Burris is obviously over 30, a US citizen and a resident of Illinois, he cannot properly be excluded from his seat for lack of constitutional “qualifications.” The alternative of relying on the refusal of Illinois’ Democratic Secretary of State to sign the appointment paperwork -- an implausible interpretation of Illinois law that would give the Secretary of State a veto over the Governor’s decisions -- is eerily reminiscent of Katherine Harris’s partisan role in the Florida saga of 2000.

The power of the Senate to judge “elections" and "returns” is a more plausible basis for rejection, and one possibly immune from judicial oversight. Was Burris lawfully appointed? Those who say yes note that Blagojevich is in fact still the lawful Governor and the charges that he sought bribes to appoint X or Y to the Senate do not render unlawful other his official acts like signing or vetoing laws, pardoning criminals, or making unrelated appointments. Since there is no evidence that a bribe was sought from, or offered by, Burris, his appointment is presumptively lawful.

There is a possible argument for rejection. Even assuming selection of Burris himself was free from any allegations of bribes sought or offered, it might nonetheless be viewed as the culmination of process that was illegitimate from start to finish. That is, suppose Blagojevich appointed Burris not because of any bribe, but as part of an effort to ‘cover up,” defend against, or deflect attention from a bribery scheme. Suppose, to put it differently, the Senate concludes that, but for the bribery scheme, and Blagojevich's personal need to cabin the fallout from that scheme, he would never have appointed Burris.

When the selection is itself free from bribery allegations, is it merely unwise or is it in fact a legal nullity if the appointment is the culmination of a selection process initially infected by corruption? Given that the presumption would be favor of the validity of a sitting Governor’s appointment, that may be a hard case to make.

Less important than the conclusion reached is the importance of having the Senate make a good faith effort to answer it according to its best understanding of the law rather than on the basis of sheer unreviewable power. Rejecting Burris without first ascertaining that there is a solid legal basis for doing so would be a greater stain on the Senate’s honor than seating someone who foolishly accepted appointed by a knave.

More POLITICO Arena

About the Arena

The Arena is a cross-party, cross-discipline forum for intelligent and lively conversation about political and policy issues. Contributors have been selected by POLITICO staff and editors. David Mark, Arena's moderator, is a Senior Editor at POLITICO. Each morning, POLITICO sends a question based on that day's news to all contributors.